United States of America v. Kenneth Eugene Allen

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0157P (6th Cir.)
File Name: 00a0157p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
KENNETH EUGENE ALLEN ,
Defendant-Appellant.
;>

1
No. 96-6313
Appeal from the United States District Court
for the Eastern District of Tennessee at Chattanooga.
No. 96-00023—Curtis L. Collier, District Judge.
Argued: December 8, 1999
Decided and Filed: May 4, 2000
Before: MARTIN, Chief Judge; MERRITT, RYAN,
BOGGS, NORRIS, SUHRHEINRICH, SILER,
BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY,
and GILMAN, Circuit Judges.
_________________
COUNSEL
ARGUED: David Ness, FEDERAL DEFENDER
SERVICES OF EASTERN TENNESSEE, INC.,
Chattanooga, Tennessee, for Appellant. David P. Folmar, Jr.,
ASSISTANT UNITED STATES ATTORNEY, Knoxville,
Tennessee, for Appellee. ON BRIEF: Deirdra J. Brown,

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2 United States v. Allen No. 96-6313
FEDERAL DEFENDER SERVICES OF EASTERN
TENNESSEE, INC., Chattanooga, Tennessee, Leah J.
Prewitt, FEDERAL DEFENDER SERVICES, Knoxville,
Tennessee, for Appellant. David P. Folmar, Jr., ASSISTANT
UNITED STATES ATTORNEY, Knoxville, Tennessee, Paul
W. Laymon, Jr., ASSISTANT UNITED STATES
ATTORNEY, Chattanooga, Tennessee, for Appellee.
BOGGS, J., delivered the opinion of the court, in which
MERRITT, RYAN, NORRIS, SUHRHEINRICH, SILER,
BATCHELDER, and DAUGHTREY, JJ., joined. GILMAN,
J. (pp. 13-16), delivered a separate opinion concurring in the
judgment, in which MARTIN, C. J., joined. CLAY, J.
(pp. 17-33), delivered a separate dissenting opinion, in which
MOORE and COLE, JJ., joined.
_________________
OPINION
_________________
BOGGS, Circuit Judge. Kenneth Eugene Allen pled guilty
to an indictment charging him with possession of crack
cocaine and an illegal firearm, after his motion to suppress
evidence seized pursuant to a warrant issued on an allegedly
insufficient affidavit was denied by the district court. He
appealed that denial. A panel of this court ruled that the
affidavit was insufficient to provide probable cause for the
warrant, and reversed his conviction. United States v. Allen,
168 F.3d 293 (6th Cir. 1999). We granted a rehearing en
banc, and now hold that an affidavit based upon personal
observation of criminal activity by a confidential informant
who has been named to the magistrate and who, as the
affidavit avers, has provided reliable information to the police
in the past about criminal activity, though without further
specificity as to the type of such activity, can be sufficient for
a magistrate to find probable cause to issue a warrant. We
affirm the district court’s denial of Allen’s motion to suppress
evidence, and Allen’s subsequent conviction.

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No. 96-6313 United States v. Allen 3
I
On October 11, 1995, Detective Gary Lomenick of the
Chattanooga Police Department received a tip from a
confidential informant (“CI”) that a man called Red Dog,
residing at 910 North Market Street, was in possession of
cocaine. Red Dog was familiar to other officers, though not
to Lomenick, as someone known to be involved with drugs,
named Kenneth Allen. Based on the CI’s information,
Lomenick sought and obtained a search warrant that same
day. The affidavit read in full as follows:
I, Gary Lomenick, a duly sworn Chattanooga Police
Officer, hereby apply for a search warrant and make oath
as follows:
1. I am a sworn Chattanooga Police Officer with the
Narcotics Division, where I have been assigned for over
15 years, and a commissioned Special Deputy Sheriff for
Hamilton County, Tennessee.
2. On the 11th day of October 1995 I Gary Lomenick
received information from an informant, a responsible
and credible citizen of the county and state, who I know
to be a responsible and credible citizen because, I have
known said informant for 5 years and said informant has
given me information about individuals involved in
criminal activity in the past that has proven to be reliable.
Said informants’s name whom I have this day disclosed
to the Judge to whom this application is made, that [sic]
John Doe (Alias) Red Dog who resides in or occupies
and is in possession of the following described premises
910 North Market Street, apartment directly underneath
carport located in Chattanooga, Hamilton County
Tennessee, unlawfully has in his possession on said
premises legend and/or narcotic drugs including Cocaine
in violation of law made and provided in such cases.
3. On the 11th day of October 1995 said informant
advised me that said informant was on the premises of
the said John Doe (Alias) Red Dog located at 910 North

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4 United States v. Allen No. 96-6313
Market Street, apartment directly underneath carport
within seventy-two hours prior to our conversation on
October 11th, 1995 and while there saw Cocaine in
possession of the said John Doe (Alias) Red Dog[.]
WHEREFORE, as such officer acting in performance
of my duty in the premises I pray that the Court issue a
warrant authorizing the search of the said John Doe
(Alias) Red Dog and the premises located at 910 North
Market Street, apartment directly underneath the carport,
for said legend and/or narcotic drugs including Cocaine
and that such search be made either by day or by night.
Id. at 296-97.
Lomenick executed the warrant that day, with a team of
other officers. When they approached the building, Allen,
who was on a porch, saw them and fled inside. The officers
gave chase. As Allen ran past a closet, the police heard a loud
thump, and shortly thereafter found a 9-mm pistol on the floor
of the closet. Allen left a trail of crack cocaine rocks behind
him as he fled. When he was apprehended, more rocks of
crack were found in his pockets, totaling 9.3 grams in all.
Allen was indicted on March 12, 1996. He was charged
with (1) possession of cocaine base with intent to distribute,
in violation of 21 U.S.C. § 841; (2) possession of a firearm in
connection with a drug offense, in violation of 18 U.S.C.
§ 924(c); and (3) possession of a firearm by a convicted felon,
in violation of 18 U.S.C. § 922(g). In a motion filed on April
18, 1996, he moved to suppress the evidence as illegally
seized, alleging that the indictment was based on an
insufficient affidavit, one that did not provide probable cause,
since it did not claim or detail any expertise or previous
reliability in narcotics contexts on the part of the CI. The
district court referred the motion to a magistrate judge for a
report and recommendation, which was filed May 15, 1996,
and which recommended the motion’s denial. This
recommendation was adopted by the district court in an order
filed May 31, 1996. Allen pled guilty to counts (1) and (2)
pursuant to a plea agreement entered on June 14, 1996, and
No. 96-6313 United States v. Allen 33
the warrant was applied for and issued prior to the Weaver decision. See
United States v. Weaver, 99 F.3d 1372 (6th Cir. 1998). Weaver simply
interpreted Leon and applied it to the facts of the case before it; Weaver
certainly did not – and in fact could not – change the exceptions to the
good faith provision as articulated by the Supreme Court. See id. at 1380-
81; see also supra note 1. Before Weaver was decided, and indeed until
the Supreme Court states otherwise, an officer cannot have a good faith
belief in a warrant that is based upon nothing more than a bare bones
affidavit. This is Leon’s command, not Weaver’s, and it is the premise
upon which Lomenick was acting at the time he applied for the warrant,
as well as the premise upon which his actions are judged.
529, 532 (5th Cir. 1986) (finding that the case fell under
Leon’s third exception because an officer could not obtain a
warrant based upon a bare bones affidavit, and then rely upon
the same bare bones affidavit to justify his alleged good faith
belief in the warrant).
Indeed, Leon was not intended to make a mockery of the
Fourth Amendment’s warrant requirement, but the
concurrence uses Leon exactly for that purpose today, and
fulfills Justice Stevens’ prophetic concern regarding the
potential for abuse under Leon’s good faith exception: “Under
the . . . new rule, even when the police know their warrant
application is probably insufficient, they retain an incentive to
submit it to a magistrate, on the chance that he may take the
bait. No longer must they hesitate and seek additional
evidence in doubtful cases.” Leon, 468 U.S. at 974 (Stevens,
J., concurring in part and dissenting in part).
Accordingly, for the above stated reasons, I would reverse
the district court’s order denying Defendant’s motion to
suppress the evidence because the affidavit submitted in
support of the warrant was nothing more than a ratification of
the bare bones assertion of a reliable informant – which was
unsupported by any police corroboration or other indicia of
reliability – and therefore failed to establish probable cause.

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32 United States v. Allen No. 96-6313
4Likewise, because I believe that there is nothing to indicate that
Lomenick held a good faith belief that the warrant was validly issued
based upon the bare bones affidavit, I think it of little consequence that
falls squarely within the third exception to Leon’s good faith
provision – that the affidavit was so lacking in indicia of
probable cause as to render official belief in its existence
entirely unreasonable, or that the warrant application was
supported by nothing more than a bare bones affidavit – so
that any doubt about the illegality of the search is put to rest.
Id. at 914-15, 923. If the concurrence was correct in its
application of Leon under these facts, then any officer could
obtain a warrant on the bare, generalized assertions of an
informant secure in the knowledge that even if the warrant
was held invalid for a lack of probable cause, the search
would be saved by nothing more than the officer’s alleged
“good faith.” Surely every officer seeking a warrant
inherently makes such an allegation; however, Leon expressly
states that more is needed for the good faith exception to
apply -- i.e., there must be evidence that the officer had an
objective good faith belief. See id.
It is precisely the lack of objective evidence to support a
finding of good faith necessary to save the search that takes
this case out of Leon’s reach. Although the concurrence
agrees that the warrant was not supported by probable cause
because “in the absence of greater specificity, the special
judge who issued the warrant in this case could not have had
a substantial basis for concluding that a search of Allen’s
residence would uncover any illegal drugs,” it goes on to hold
that Leon applies to save the illegal search because Lomenick
held a good faith belief that the warrant was valid, without
any further support for this declaration. I believe that one
cannot legally or logically agree that the affidavit was so
woefully lacking in any indicia of specificity that it failed to
provide the magistrate with a substantial basis to conclude
that probable cause existed to allow the warrant to issue, and
yet conclude that based upon the same woefully lacking
affidavit, Lomenick’s belief in the warrant’s existence was
reasonable.4 See, e.g., United States v. Barrington, 806 F.2d
No. 96-6313 United States v. Allen 5
was sentenced to sixteen years and three months in prison.
He had reserved his right to appeal, and an appeal to this court
ensued.
II
Our review of the sufficiency of an affidavit underlying a
search warrant follows, as it must, the principles laid down by
the Supreme Court in Illinois v. Gates, 462 U.S. 213 (1983).
There, the Court rejected the rigid tests that had evolved as
lower courts attempted to implement earlier Supreme Court
decisions, in favor of a “totality of the circumstances”
approach. Id. at 230-31 (abandoning the inflexible two-part
test developed in the light of Aguilar v. Texas, 378 U.S. 108
(1964), and Spinelli v. United States, 393 U.S. 410 (1969)).
The Court explained its deviation from the earlier approach in
this way:
“[V]eracity,” “reliability” and “basis of knowledge” are
all highly relevant in determining the value of [a CI’s]
report. We do not agree, however, that these elements
should be understood as entirely separate and
independent requirements to be rigidly exacted in every
case . . . . Rather, . . . they should be understood simply
as closely intertwined issues that may usefully illuminate
the commonsense, practical question whether there is
“probable cause” to believe that contraband or evidence
is located in a particular place.
Id. at 230.
Gates also guides our deference to the issuing magistrate’s
determination of probable cause: “line-by-line scrutiny [of an
underlying affidavit is] . . . inappropriate in reviewing [a]
magistrate[’s] decisions.” Id. at 246 n.14. The Court
emphasized in that case that it had “repeatedly said that after-
the-fact scrutiny by courts of the sufficiency of an affidavit
should not take the form of de novo review.” Id. at 236. It
soundly rejected “[a] grudging or negative attitude by
reviewing courts toward warrants” Ibid. (quoting United
States v. Ventresca, 380 U.S. 102, 108 (1965)). Rather,

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6 United States v. Allen No. 96-6313
reviewing courts are to accord the magistrate’s determination
“great deference” Ibid. (quoting Spinelli, 393 U.S. at 419).
The Court stressed that a hypertechnical critique of warrants
would only, in the end, encourage warrantless searches,
undermining the very Fourth Amendment right such an
approach would seek to protect. Instead, it reaffirmed the
traditional standard:
Reflecting this preference for the warrant process, the
traditional standard for review of an issuing magistrate’s
probable cause determination has been that so long as the
magistrate had a “substantial basis for . . . conclud[ing]”
that a search would uncover evidence of wrongdoing, the
Fourth Amendment requires no more.
Ibid. (quoting Jones v. United States, 362 U.S. 257, 271
(1960)). This circuit has long held that an issuing
magistrate’s discretion should only be reversed if it was
arbitrarily exercised. See United States v. Swihart, 554 F.2d
264, 267-68 (6th Cir. 1977).
The Allen panel examined for guidance three decisions of
this court, formulated in the light of Gates. These are:
United States v. Pelham, 801 F.2d 875 (1986); United States
v. Finch, 998 F.2d 349 (1993); and United States v. Weaver,
99 F.3d 1372 (1996). But as the dissent in Allen pointed out,
these cases themselves, particularly the last, would appear to
yield an inconsistent standard; the hope was accordingly
expressed that this court, sitting en banc, would “clarify the
law in this circuit regarding the necessary requirements for the
issuance of a search warrant based on uncorroborated
information from an informant.” 168 F.3d at 308 (Gilman, J.,
concurring in part and dissenting in part).
Pelham held that an affidavit naming an informant, and
stating that the informant had personally observed marijuana
being stored and sold on certain premises in the immediate
past, provided a “substantial basis” for believing that a search
would uncover evidence of criminal activity there, and
therefore was sufficient for a magistrate to find that probable
cause existed for a warrant to issue.
No. 96-6313 United States v. Allen 31
was lacking in specificity and detail, and was not corroborated
by independent police investigation. As emphasized above,
the particularized inquiry under a totality of the circumstances
as prescribed by Gates is not limited to those instances where
the informant was anonymous.
III.
My opinion should not be mistaken as a call to return to the
rigid mandates of Aguilar and Spinelli. To the contrary, the
Supreme Court has made clear that the factors required by
these decisions best lend themselves to a probable cause
analysis when they are balanced and weighed in light of the
totality of the circumstances. Gates, 462 U.S. at 230-31. The
Court has also directed that the credibility and persuasiveness
of one factor can compensate for the lack of the other in order
to support a finding of probable cause. Id. at 238-39.
However, with equal force the Court has commanded that
both the veracity or reliability of the informant as well as the
basis for knowledge of the tip must be weighed and
considered, see id. at 230-31; contrariwise, the rule espoused
by the majority today allows for a warrant to issue based
simply upon a generalized assertion regarding the reliability
of the informant. Such a result finds no support in Gates and
surely no support in the history of the Fourth Amendment.
Under the majority’s approach, the Fourth Amendment’s
warrant requirement is eviscerated, and now amounts to little
more than an inconsequential formality and a mere “form of
words.” See Silverthorne Lumber Co. v. United States, 251
U.S. 385, 392 (1920). As a result, the citizens in this circuit
cannot rest easily or feel secure in their homes against
unreasonable searches and seizures.
On a final note, I disagree with the concurrence that the
illegal search is saved by the good faith exception to the
warrant requirement as enunciated in United States v. Leon,
468 U.S. 897 (1984). Like its hyperbolic “apocalyptic
sentiments” language, the concurring opinion’s belief that
“Lomenick ‘acted in objective good faith’ when he relied on
the warrant” as set forth in Leon, is unfounded. This case

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30 United States v. Allen No. 96-6313
considered the totality of the circumstances to provide the
requisite particularity for the warrant to issue. In the instant
case, however, the majority makes probable cause a fait
accompli once the informant’s tip is considered. It is not
coincidental or a mere slip of the pen that the majority cites
no authority for its sweeping declaration.
However, support for my position is well-steeped not only
in Gates, but also in the Supreme Court’s decision in
Alabama v. White, 496 U.S. 325, 330 (1990), where the Court
articulated the standard for “reasonable suspicion.”
Specifically, the Court found that although “reasonable
suspicion is a less demanding standard than probable cause[,]
. . . like probable cause, [reasonable suspicion] is dependent
upon both the content of information possessed by police and
its degree of reliability. Both factors – quantity and quality
– are considered in the ‘totality of the circumstances – the
whole picture.’” See id. (emphasis added) (quoting United
States v. Cortez, 449 U.S. 411, 417 (1981)); see also Florida
v. J.L., ___ U.S. ___, No. 98-1993, 2000 WL 309131 (Mar.
28, 2000). It logically follows that if reasonable suspicion, a
standard less demanding than probable cause, cannot be found
without a consideration of both the quantity and quality of the
information provided, surely probable cause cannot be found
without a consideration of both of these factors.
Furthermore, the majority makes a futile attempt to
distinguish those cases where the affidavits were found to be
insufficient to establish probable cause, solely on the basis
that the informant was anonymous or that the affidavit was
lacking as to the informant’s reliability. See Ante (citing
United States v. Reddrick, 90 F.3d 1276, 1280 (7th Cir.
1996); United States v. Leake, 998 F.2d 1359, 1365 (6th Cir
1993); United States v. Gibson, 928 F.2d 250, 253 (8th Cir.
1991); United States v. Mendonsa, 989 F.2d 366, 369 (9th
Cir. 1993)). In my opinion, these cases are indistinguishable
from the case at hand and support my position, as well as the
position of the unanimous Allen panel, that the affidavit failed
to provide a substantial basis to believe that Defendant was
engaged in the criminal activity alleged because the affidavit
No. 96-6313 United States v. Allen 7
1A contrary approach, taken by the Illinois courts, was used by the
Supreme Court as an example of the folly to which rigid application of the
“two-prong” test can lead. See Gates, 462 U.S. at 235 n.9 (citing People
v. Palanza, 55 Ill. App. 3d 1028, 371 N.E.2d 687 (Ill. App. 1978)
(holding a warrant invalid because “[t]here is no indication as to how the
informant or for that matter any other person could tell whether a white
substance was cocaine and not some other substance such as sugar or
salt.”)).
Finch upheld the sufficiency of an affidavit to establish
probable cause, against challenges both that the informant’s
reported observation of cocaine on the premises was
speculative, since he couldn’t “know” the substance was
cocaine, and that the affidavit was merely conclusory.
Rejecting these contentions, the court in Finch pointed out
that, given the informant’s stated experience and past
reliability in drug cases, the informant could reasonably be
assumed to be familiar with cocaine and able to identify it by
observation,1 and that an affidavit setting out the reasons for
a belief, as opposed to merely stating a belief, is not
conclusory. 998 F.2d at 352. Such is the case here.
In Weaver, a panel of this court weighed the sufficiency of
an affidavit used to obtain a warrant to search the residence of
Gary Weaver for marijuana believed to be held there in
quantity for distribution. The CI, after providing an initial tip
based on hearsay, was furnished with $100 and instructed to
go to Weaver’s house and make a buy. He did so, informing
the police of his purchase of a half-ounce of marijuana from
Weaver, and of his belief (though without personal
observation) that Weaver was growing marijuana at home.
The resulting affidavit indicated that the CI, unnamed in the
affidavit but named to the magistrate, was known to be
reliable, having provided information about drug activity in
the past, and that he had personally observed marijuana in
Weaver’s house. (The affidavit did not mention the half-
ounce drug sale, for which the police did not intend to charge
Weaver.) The officers who subsequently searched the house
found a quarter-ounce of marijuana, for which Weaver was
not prosecuted; nor was he prosecuted for the misdemeanor

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8 United States v. Allen No. 96-6313
sale to the CI. But the police also found several rifles, and
Weaver, a convicted felon, was charged with unlawfully
possessing them.
In finding the affidavit insufficient to establish probable
cause for the warrant to issue, reversing the district court, the
Weaver panel noted that the stated purpose of the search was
to find evidence of suspected drug dealing; yet the affidavit
itself had contained no information about the purchase the CI
was supposed to have attempted, nor about the quantity of
marijuana he observed, nor any other facts which would
support a belief that drugs were being held in the house for
sale. As this court observed of Weaver in another case, what
was lacking in the Weaver affidavit was any indication of
probable cause to suspect drug trafficking, the offense for
which the warrant was expressly being sought. See United
States v. Smith, 182 F.3d 473, 480 (6th Cir. 1999). But that
was not in itself fatal, since an affidavit need only provide
probable cause to believe a search will uncover evidence of
some wrongdoing, without need for further specificity. See
United States v. Anderson, 923 F.2d 450, 457 (6th Cir. 1991)
(holding “that knowledge of the precise crime committed is
not necessary to a finding of probable cause provided that
probable cause exists showing that a crime was committed by
the defendants”). What was finally fatal in the Weaver
affidavit was its lack of probable cause to believe any
marijuana previously observed by the CI would be left to be
discovered by a search, for there was no mention of the
quantity of drugs observed. Nor was there any attempt to note
behavior indicating ongoing sales.
As Weaver pointed out, in an effort to keep secret the
identity of a CI, the affidavit had been stripped of almost all
particularity, and been reduced to “bare bones,” with little
added to the boilerplate language kept on file. In that
situation, the panel held that other particularized facts, not
identifying the CI, but obtained, for example, through police
surveillance, should have been adduced to buttress the CI’s
information, if preserving his identity prevented the affidavit
from going into further detail. See Weaver, 99 F.3d at 1378.
No. 96-6313 United States v. Allen 29
not enough without any meaningful follow up by the police.
Id. at 55. In Judge Merritt’s opinion, to hold otherwise
“reduced the castle to a hovel where the state may presume
that marijuana is grown” or other contraband is kept. Id. at
55. The same holds true in the case at hand. Contrary to the
majority’s holding today, the fact that the informant is known
to the officer and has provided reliable information in the past
does not a fortiori make the second factor irrelevant or end
the inquiry.
Indeed, nowhere in Gates is there support for the majority’s
sweeping holding. Although it is true that the informant in
Gates was anonymous, the pronouncements made therein
regarding the relevant inquiry into whether the information
received by an informant provides a substantial basis for
determining probable cause were not limited to the case
where the informant was anonymous. The Court easily could
have held that the balancing of reliability and basis of
knowledge under a totality of the circumstances is limited to
those instances where the informant was unknown or had not
provided reliable information in the past. However, the
Supreme Court did no such thing. The only qualifier that was
placed upon the instance where a “particular informant is
known for the unusual reliability of his predictions of certain
types of criminal activities in a locality” is that the
informant’s “failure . . . to thoroughly set forth the basis of his
knowledge surely should not serve as an absolute bar to a
finding of probable cause based on his tip.” Id. at 233. The
majority’s holding that “[a]n affidavit based upon personal
observation of criminal activity by a confidential informant
who has been named to the magistrate and who, as the affiant
avers, has provided reliable information to the police in the
past about criminal activity, though without further specificity
as to the type of such activity, can be sufficient for a
magistrate to find probable cause to issue a warrant[,]”
convolutes the pronouncement in Gates. In other words, the
Supreme Court in Gates held that a tip lacking in detail or
specificity from a known confidential informant should not
prove an absolute bar to finding probable cause, because other
indicia of reliability (the basis for knowledge) would be

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28 United States v. Allen No. 96-6313
requirement is not a factor to be assumed or a mere
technicality; it is an express constitutional command. See,
e.g., Ybarra v. Illinois, 444 U.S. 85, 92 (1979); Lo-Ji Sales,
Inc. v. New York, 442 U.S. 319 (1979); Marron v. United
States, 275 U.S. 192, 196 (1927). This affidavit lacked any
indicia of basis of knowledge, and the magistrate simply
ratified the bare bones assertions made in the affidavit when
he issued this warrant, contrary to the Supreme Court’s
command under the Fourth Amendment. See Gates, 462 U.S.
at 239. As stated, the fact that the informant was known and
reliable is not enough, by itself, to provide a substantial basis
to the issuing magistrate that Defendant was engaged in the
criminal activity alleged. See, e.g., United States v. McNatt,
931 F.2d 251, 253 (4th Cir. 1991) (finding that the
information provided by the known, reliable informant was
sufficient to establish probable cause under Gates because the
information was specific in nature and corroborated by the
police).
In a case from this circuit where the converse was true –
i.e., the affidavit while being rich in detail was from an
anonymous tip in which minimal corroborative efforts were
taken by the police – one panel member disagreed with the
majority that the affidavit supported a finding of probable
cause. See United States v. Sonagere, 30 F.3d 51, 55 (6th Cir.
1994) (Merritt, J., dissenting). Judge Merritt noted that “if
detail is all that is needed to support a search warrant, the
Fourth Amendment will no longer be any constraint or check
on the issuance of search warrants. Any ‘detailed’
information, uncorroborated by the police, from virtually any
unknown, unreliable source, would support issuance of a
search warrant.” See id. Judge Merritt disagreed with the
majority that the specific nature of the tip was sufficient to
compensate for the fact that the information source had never
been used before and that the affidavit failed to provide any
indication of the reliability of the source; however, he found
it “[e]ven more troubling [that] the officers did nothing to
corroborate any of the information or develop independent
information that might supplement that of the information
source.” Id. at 54. The fact that the tip was rich in detail was
No. 96-6313 United States v. Allen 9
Weaver’s holding that the uncorroborated search warrant
was defective is limited to the facts of that case. Weaver does
not support the general propositions that a CI’s information
must always be independently corroborated by police, or that
an affidavit must in every case set out and justify a CI’s
expertise in identifying the particularities of the criminal
activity alleged, propositions we reject for the reasons that
follow.
III
In applying Gates to the circumstances before it, the Allen
panel referred to the “totality of the circumstances” approach
of that decision as a “test,” and then applied this “test’ in a
two-factor analysis, indicating that a CI’s information would
gain significant weight when supported by (1) explicit and
detailed description gleaned from first-hand observation, and
(2) independent investigative corroboration. Allen, 168 F.3d
at 298. No doubt this is so, but the question is whether these
factors are requirements, both of which must be satisfied to
comply with the Fourth Amendment’s bar against
unreasonable searches and seizures. See U.S. Const. amend.
IV. As the Court observed in Gates, tests and prongs have an
unfortunate tendency to develop a life of their own, and tend
to draw more attention to their individual characteristics than
to the totality of the circumstances. See Gates, 462 U.S. at
230 n.5 (criticising “[t]he entirely independent character that
the Spinelli prongs have assumed”). That is what has
happened here.
The majority of the panel that heard Allen’s appeal to this
court criticized the affidavit on four grounds. First, it is not
specific as to the type or amount of cocaine observed in the
residence to be searched. Second, facts bearing on the
informant’s familiarity with the appearance of cocaine are not
provided. Third, especially in the light of the second
objection, independent police corroboration is lacking.
Fourth, the text was largely prefabricated boilerplate,
supposedly encouraging the lack of specificity already
complained of. See Allen, 168 F.3d at 302.

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10 United States v. Allen No. 96-6313
These complaints do not call for individual rebuttal. The
affidavit is judged on the adequacy of what it does contain,
not on what it lacks, or on what a critic might say should have
been added. It is the totality of the circumstances that
persuade us that the affidavit in the instant case was, in fact,
not merely “conclusory and ‘bare bones’” in nature but
sufficient. The panel wrote: “the affidavit failed to provide
any facts about the informant’s knowledge or familiarity with
the appearance of cocaine. Instead, the affidavit merely stated
that the tips of ‘criminal activity’ provided by the informant
in the past have ‘proven to be reliable.’” Ibid. But in fact, the
affidavit states under oath that the affiant, Detective
Lomenick, has known the CI for five years, that Lomenick has
been assigned to the Narcotics Division for fifteen years, and
that “said informant has given me [Lomenick] information
about individuals involved in criminal activity in the past that
has proven to be reliable.” Id. at 296. It is obvious on the
face of the affidavit that such information in the past most
likely concerned narcotics. Affidavits are not required to use
magic words, nor does what is obvious in context need to be
spelled out; if a CI saw guns, he is not required to explain
how he knew what a gun looks like. Nor is an affidavit
required to present proof that would without question
withstand rigorous cross-examination. Clearly, this CI’s past
experience with the drug trade was reflected anew in the
circumstances of this case. Taken as a whole, the affidavit
provided sufficient facts from which the magistrate could
draw an independent conclusion as to the probability
(certainty is not required) of what it alleged a search would
disclose. There was nothing arbitrary about a conclusion that,
in this case, probable cause existed.
Since Gates, affidavits have been found insufficient for
various deficiencies, none of them exhibited here. For
example, a merely conclusory statement of the affiant’s belief
in an informant’s past credibility, unsupported by further
detail, failed to pass muster in the Seventh Circuit. See
United States v. Reddrick, 90 F.3d 1276, 1280 (7th Cir. 1996).
That result complies with Gates’s requirement that the
information presented to the magistrate in the affidavit be
No. 96-6313 United States v. Allen 27
drugs without compromising their case or a potential
conviction. Here, any indicia of corroboration by Lomenick
such as minimal surveillance of Defendant’s residence to
determine a pattern of drug activity, or simply asking for more
details from the informant would have assisted in providing
the magistrate a more particularized basis for determining
probable cause. However, Lomenick failed to so much as
provide a statement that he had dealt with this informant in
relation to Lomenick’s duties as a narcotics officer, or that
this informant had provided information which had led to
narcotics convictions in the past.
The majority engages in speculation or conjecture in order
to supply the requisite indicia of reliability to this affidavit
when it assumes, without more, that Lomenick’s dealing with
the informant involved narcotics. (“It is obvious on the face
of the affidavit that such information in the past most likely
concerned narcotics.”) The majority bases this assumption on
the fact that Lomenick has worked in the narcotics division
for fifteen years and has known the confidential informant for
five years – not because of any information derived from the
affidavit itself. It is well known that criminal activity
associated with illegal narcotics also includes a bevy of other
criminality such as prostitution, gambling, illegal firearms,
burglary, and various other illegal means to finance drug
operations and use. As such, without more specificity
concerning the type of information this informant had
provided in the past, it is impossible to determine “on the face
of the affidavit” whether Lomenick’s past dealings with this
informant directly involved illegal narcotics transactions, or
whether his dealings with this informant dealt with other
types of criminal activity.
Gates commands a reviewing court to weigh and balance
the evidence presented before it; Gates does not command --
and indeed could not legally command under the Fourth
Amendment -- that a reviewing court compensate for
deficiencies in the affidavit by engaging in speculation or
conjecture. See U.S. C ONST . amend. IV; Gates, 462 U.S. at
230-31. Contrary to the majority’s assertion, the specificity

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26 United States v. Allen No. 96-6313
3The majority seems to imply that the Allen panel argued that police
investigation and corroboration are necessary in every case in order for a
warrant to issue; however, the Allen panel made no such argument and I
make no such averment here. Rather, as stated in Gates, police
corroboration becomes valuable and particularly significant when the tip
provided by the informant lacks detail and specificity sufficient to comply
with the particularity requirement of the Fourth Amendment. See Gates,
462 U.S. at 243-44. In fact, the Allen panel began its analysis by stating
that “[t]his case asks us to decide whether the affidavit presented to
Special Judge McColpin set forth sufficient particularized facts for the
judge to find a substantial basis for probable cause to issue the search
warrant . . . .” See United States v. Allen, 168 F.3d at 297. It is the lack
of specificity of the informant’s tip coupled with the lack of any
corroboration by the police that should have been fatal to the affidavit
here, as the Allen panel found.
had provided reliable information regarding narcotics in the
past; it failed to provide any information as to where the
cocaine was being stored or sold; and it failed to indicate the
amount of cocaine that was allegedly seen or any basis as to
why the informant had reason to believe that the substance
which he allegedly observed was cocaine. As such, the
affidavit failed to provide a substantial basis that cocaine
would likely be found in Defendant’s possession on the
premises some seventy-two hours later. See United States v.
McKinney, 143 F.3d 325, 328 (7th Cir. 1998) (noting that “[a]
search warrant should not issue except on probable cause that
evidence of a crime is currently located at a particular place”
(emphasis added)).
Moreover, the affidavit failed to indicate any corroborating
efforts by the police which, as stated by the Allen panel, may
have changed the outcome here.3 The majority’s concern for
detectives conducting surveillance in crack-ridden
neighborhoods or for investigative measures adding
additional time for the “highly mobile” drug operations to
relocate, are unfounded and completely unsupported by the
record. Drug interdiction officers such as Lomenick are
trained to carry out such tasks as surveying suspected
residences in crack-ridden neighborhoods, and determining
the pattern of activity of those suspected of dealing in illegal
No. 96-6313 United States v. Allen 11
sufficient to allow “that official” to assess probable cause
independently, and not merely to rubber-stamp the affiant’s
conclusion. See Gates, 462 U.S. at 239.
This court has upheld a district court’s finding that no
probable cause existed when a warrant was issued based on
an affidavit whose information came from an anonymous tip
sparse in detail and wholly uncorroborated by the police. See
United States v. Leake, 998 F.2d 1359, 1365 (6th Cir. 1993).
The Eighth Circuit also found no probable cause provided by
an affidavit also based on an anonymous tip, albeit one rich in
particulars, where police investigation corroborated only
innocent details and found nothing suspicious. See United
States v. Gibson, 928 F.2d 250, 253 (8th Cir. 1991). The
Ninth Circuit invalidated a warrant under very similar
circumstances. See United States v. Mendonsa, 989 F.2d
366, 369 (9th Cir. 1993). These cases rightly insisted upon
substantial independent police corroboration, because of the
absence of any indicia of the informants’ reliability. Gates
had turned on precisely such a question, and emphasized the
need for corroboration in those circumstances. See 462 U.S.
at 244.
That is not a factor here. The CI was not anonymous, but
personally known to the detective who swore the affidavit,
and who revealed the CI’s name to the magistrate. The CI’s
reliability in criminal matters in which the detective was
involved had extended over a five-year period. The
information alleged was of direct personal observation of
criminal activity. Corroboration is not a necessity in such a
case. A requirement that information from such a CI should
invariably have to be personally corroborated by further
police investigation would aid lawbreakers, as detectives tried
to conduct surveillance in crack-ridden neighborhoods
without themselves being detected and their suspects alerted.
Moreover, the additional time thus added to the process by
mandating an independent police investigation following a
CI’s contact would provide a further advantage to drug
dealers’ already highly mobile, hit-and-run operations. We
decline to handicap the state in that way.

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12 United States v. Allen No. 96-6313
Nevertheless, a caveat is in order. Police should be aware
that failure to corroborate all that can easily be corroborated
incurs two dangers. The first is to risk that a warrant will not
issue where it should. The second is to risk the loss, at trial
or on appeal, of what has been gained with effort in the field.
But while better investigative work is preferable to merely
adequate investigation, it is not the constitutional measure of
probable cause.
At bottom, we return to the basics of the Fourth
Amendment: is there “probable cause” to believe that
evidence of a crime will be found in the search? We hold that
where a known person, named to the magistrate, to whose
reliability an officer attests with some detail, states that he has
seen a particular crime and particular evidence, in the recent
past, a neutral and detached magistrate may believe that
evidence of a crime will be found. There is, of course, no
guarantee that the evidence will still be there, but the
magistrate may determine that such a probability exists. This
holding requires evidence sufficient to provide a basis for that
judgment. It cannot properly be characterized, in the dissent’s
terms, as “driv[ing] a stake through the very heart of the
Fourth Amendment” or “mak[ing] a mockery of the Fourth
Amendment’s warrant requirement.” Such a description
cannot be used “in the extreme acceptance of th[os]e word[s]
without some risk of terminological inexactitude,” to employ
Churchill’s phrase. See 1 Winston S. Churchill, His
Complete Speeches 1897-1963 562 (Robert Rhodes James,
ed.).
IV
For the foregoing reasons the judgment of the district court
is AFFIRMED.
No. 96-6313 United States v. Allen 25
Said differently, the affidavits submitted in Aguilar and
Nathanson were insufficient to allow the issuing magistrate
to determine probable cause because they lacked reliable
information; the magistrate’s determination otherwise would
have improperly been “a mere ratification of the bare
conclusions of others.” Gates, 462 U.S. at 239. Although the
information may have been attested to as being “reliable,” it
lacked any indicia of specificity or corroboration. Indeed, the
Aguilar Court found that had the police made some efforts at
corroborating the “reliable” informant’s tip, “an entirely
different case” would have been presented. See Aguilar, 378
U.S. at 109 n.1.
The value of corroborative police efforts was also
emphasized in Gates. Specifically, the Court found two
factors significant in allowing a reviewing court to assess
whether an informant’s tip provides a substantial basis to
constitute probable cause. First, an “explicit and detailed
description of alleged wrongdoing, along with a statement
that the event was observed firsthand, entitles [the
informant’s] tip to greater weight that might otherwise be the
case.” Gates, 462 U.S. at 234. Second, the extent to which
the tip is corroborated by the police officer’s own
investigation is significant. Id. at 244.
Despite these clear directives from the Court that both the
reliability as well as the basis of knowledge of the information
must be considered in light of the totality of the circumstances
to insure that a warrant does not issue based upon the bare
bones conclusions of others, the majority today holds that a
warrant may issue based upon the averment made by a
reliable informant, regardless of the lack of specificity or
independent corroboration. The warrant at issue simply
averred that 1) the affiant had known the informant for five
years and that the informant had provided information in the
past that had proven to be reliable; 2) that the informant’s
name was provided to the magistrate; and 3) that informant
had seen Defendant in possession of cocaine at Defendant’s
home approximately seventy-two hours prior to informing the
affiant. The affidavit lacked any indication that this informant

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24 United States v. Allen No. 96-6313
the officer attest “with some detail” as to the informant’s reliability.
Instead, the magistrate was simply provided with a general assertion made
by an informant, whom Lomenick had known for five years and who had
provided information regarding “criminal activity” in the past, that
Defendant was in possession of “legend and/ or narcotic drugs including
Cocaine” on his premises. As discussed more fully infra in this dissent,
this generalized assertion fails to pass constitutional muster under the
Fourth Amendment – and indeed fails even under the majority’s holding
as expressed in Section III – because it lacks specificity and particularity
as to the quantity or location of the illegal drugs, or as to why this
informant had a basis of knowledge for making his assertion, especially
where Lomenick did nothing to corroborate the tip. Furthermore, I find it
of no consequence that a magistrate is provided with the name of the
informant, particularly in this case where there is nothing in the record to
suggest that the informant’s name was of any meaning to the magistrate --
i.e., the name had no bearing in establishing a substantial basis to believe
that criminal activity was afoot (probable cause). To borrow from
Shakespeare, “What’s in a name! that which we call [an informant] By
any other name would smell as [unreliable.]” See WILLIAM S HAKESPEARE
THE COMPLETE WORKS, ROMEO AND J ULIET act 2, sc. 1, 254 (Dorset Press
1988).
In fact, the Gates Court provided examples of cases which
“illustrate[d] the limits beyond which a magistrate may not
venture in issuing a warrant.” 462 U.S. at 239. Included in
these examples were those instances when the warrant was
based upon a “wholly conclusory statement” which provided
the magistrate with no basis at all for making an informed
judgment. One such example was in the case of Aguilar
where an officer’s statement that “[a]ffiants have received
reliable information from a credible person and do believe
that heroin” is stored in the home, was found to be
insufficient to provide the magistrate with probable cause to
issue the warrant. See Id. (quoting Aguilar, 378 U.S. at 109).
Likewise, in Nathanson v. United States, the Supreme Court
found that the affiant’s sworn statement that “‘he has cause to
suspect and does believe that’ liquor illegally brought into the
United States is located on certain premises” was not
sufficient because it was merely a wholly conclusory
statement which failed to provide the magistrate with a
substantial basis upon which to issue the warrant. See 462
U.S. at 239 (quoting Nathanson, 290 U.S. 41, 44 (1933)).
No. 96-6313 United States v. Allen 13
_____________________
CONCURRENCE
_____________________
RONALD LEE GILMAN, Circuit Judge, concurring in the
judgment. Although I agree with the majority’s ultimate
conclusion that the district court did not err in denying
Allen’s motion to suppress, I write separately because my
reasoning is not based on the validity of the warrant itself, but
rather on the good faith exception to the warrant requirement
as established by United States v. Leon, 468 U.S. 897 (1984).
I agree with the dissent’s position that the warrant in this
case was deficient, but do not share its somewhat apocalyptic
sentiments. The key language of the underlying affidavit
simply stated that “[defendant] . . . unlawfully has in his
possession on said premises legend and/or narcotic drugs
including Cocaine” and that the informant “while there saw
Cocaine in possession of the said [defendant] . . . .” No
information was provided as to quantity, storing, or selling.
Based on the information provided, the informant may have
observed nothing more than Allen possessing one or two
rocks of crack cocaine, which could have been quickly
consumed. Thus, in the absence of greater specificity, the
special judge who issued the warrant in this case could not
have had a substantial basis for concluding that a search of
Allen’s residence would uncover any illegal drugs. See
Illinois v. Gates, 462 U.S. 213, 230-31 (1983) (adopting the
“totality of the circumstances” test as the controlling standard
in determining probable cause for search warrants).
I therefore agree with the dissent’s conclusion that there
was an absence of probable cause to support the issuance of
the search warrant in question. See Zurcher v. The Stanford
Daily, 436 U.S. 547, 556-57 n.6 (1978) (quoting with
approval the following statement: “Search warrants may be
issued only by a neutral and detached judicial officer, upon a
showing of probable cause—that is, reasonable grounds to
believe—that criminally related objects are in the place which

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14 United States v. Allen No. 96-6313
the warrant authorizes to be searched, at the time when the
search is authorized to be conducted.”) (emphasis added);
United States v. McKinney, 143 F.3d 325, 328 (7th Cir. 1998)
(“A search warrant should not issue except on probable cause
that evidence of a crime is currently located at a particular
place.”); United States v. Finch, 998 F.2d 349, 352 (6th Cir.
1993) (“Probable cause for the issuance of a search warrant is
defined in terms of whether the affidavit sets out facts and
circumstances which indicate a fair probability that evidence
of a crime will be located on the premises of the proposed
search.”) (citation and internal quotation marks omitted)
(emphasis added).
Despite these deficiencies, however, I believe that
Detective Lomenick “acted in objective good faith” when he
relied on the warrant. Leon, 468 U.S. at 908. In Leon, the
Supreme Court held that the exclusionary rule does not “bar
the admission of evidence seized in reasonable, good-faith
reliance on a search warrant that is subsequently held to be
defective.” Id. at 905. The proper test of an officer’s good
faith is “whether a reasonably well trained officer would have
known that the search was illegal despite the magistrate’s
authorization.” Id. at 922 n.23. Here, Lomenick presented a
neutral judicial officer with an affidavit stating that he had
information about the presence of illegal drugs at a specific
location from a reliable informant that was based on recent,
personal observation.
After examining the warrant under the microscope of close
legal analysis, I agree with the dissent’s conclusion that the
underlying affidavit lacked sufficient specificity to pass
constitutional muster. I cannot further conclude, however,
that the affidavit at issue was “so lacking in indicia of
probable cause as to render official belief in its existence
entirely unreasonable.” Leon, 468 U.S. at 923 (citations and
internal quotation marks omitted); see also United States v.
Cardall, 773 F.2d 1128, 1133 (10th Cir. 1985) (“Courts
cannot make the good faith of an officer turn upon whether
his reliance on a warrant was misplaced. It is only when the
No. 96-6313 United States v. Allen 23
2The majority’s holding as articulated in the last paragraph of Section
III of the opinion does not change my position. I specifically note the
dichotomy between the holding set forth by the majority in the first
paragraph of the opinion, and its holding – rephrased in response to this
dissent – set forth in Section III. Which is to say, the majority retreats
somewhat from its holding as set forth at the outset of the opinion in an
apparent attempt to compensate for its failure to account for the
particularity requirement of the Fourth Amendment.
Juxtaposing the phraseology of the holdings is helpful to illustrate my
point. In the first paragraph of the opinion, the majority holds that “an
affidavit based upon personal observation of criminal activity by a
confidential informant who has been named to the magistrate and who, as
the affidavit avers, has provided reliable information to the police in the
past about criminal activity, though without further specificity as to the
type of such activity, can be sufficient for a magistrate to find probable
cause to issue a warrant.” In the last paragraph of Section III, the
majority attempts to strengthen the probable cause standard set forth in its
holding, when it states that “[w]e hold that where a known person, named
to the magistrate, to whose reliability an officer attests with some detail,
states that he has seen a particular crime and particular evidence, in the
recent past, a neutral and detached magistrate may believe that evidence
of a crime will be found.” Simply by adding the words “particular” and
“detail” to its holding as couched in Section III, does not thereby render
the majority’s reasoning and result compatible with Gates or
constitutional under the Fourth Amendment. Even when its additional
rhetoric is taken into account, the majority’s position is no stronger at the
end of Section III than it was at the outset of its opinion.
In fact, the majority’s holding as articulated in Section III only serves
to undermine its conclusion that the warrant in this case was supported by
probable cause. The magistrate in this case was not provided with a basis
of knowledge of “a particular crime” and “particular evidence,” nor did
basis of knowledge of the tip. Although it is true that a
deficiency in one of the prongs may be compensated by the
strength of the other prong, it is equally as true that both the
“reliability” as well as the “basis of knowledge” prongs
should nonetheless be considered. See Gates, 462 U.S. at
238-39. The majority’s relaxed standard for finding probable
cause is not supported by Gates and indeed fails to heed the
Supreme Court’s mandate that “courts must continue to
conscientiously review the sufficiency of affidavits on which
warrants are issued” in order to insure that a magistrate does
not abdicate his duty by issuing warrants based upon the “bare
bones” conclusions of others.2 Id. at 239.

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22 United States v. Allen No. 96-6313
balanced assessment of the relative weights of all the
various indicia of reliability (and unreliability) attending
an informant’s tip, the “two-pronged test” has
encouraged an excessively technical dissection of
informants’ tips with undue attention being focused on
isolated issues that cannot sensibly be divorced from the
other facts presented to the magistrate.
Id. at 233-34 (citations and footnotes omitted; emphasis
added).
In short, the Court in Gates abandoned the rigid “two-
prong” test and in its place, reaffirmed the traditional totality
of the circumstances approach, holding that the elements of
the two prong test are relevant factors to be balanced in light
of all of the information provided:
The task of the reviewing magistrate is simply to make a
practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him,
including the “veracity” and “basis of knowledge” of
persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be
found in a particular place. And the duty of a reviewing
court is simply to ensure that the magistrate had a
“substantial basis for . . . conclud[ing]” that probable
cause existed.
Id. at 238-39 (citations omitted).
II.
The flaw in the majority’s holding in the case at hand lies
in its failure to comply with Gates’ command to consider the
totality of the circumstances; instead, the majority relaxes the
probable cause requirement to a degree unsupported by Gates,
and allows for a warrant to issue based simply upon the
averment that the informant “has provided reliable
information in the past about criminal activity . . . without the
further specificity as to the type of such activity . . . .” In
other words, the majority’s holding fails to account for the
No. 96-6313 United States v. Allen 15
reliance was wholly unwarranted that good faith is absent.”)
(emphasis added).
The dissent contends that, were my view to be adopted,
“any officer could obtain a warrant on the bare, generalized
assertions of an informant secure in the knowledge that even
if the warrant was held invalid for a lack of probable cause,
the search would be saved by nothing more than the officer’s
alleged ‘good faith.’” I find this contention to be without
merit. As the Supreme Court in Leon emphasized, “the
standard of reasonableness . . . is an objective one.” Id. at 919
n.20 (emphasis added). Thus, the determination of whether
the good faith exception applies in a particular case does not
depend on the subjective beliefs of the officers involved. See
United States v. Maggitt, 778 F.2d 1029, 1035 n.3 (5th Cir.
1985) (“Because the Leon standard is objective, the testimony
of the agent who prepared the affidavit . . . is not particularly
relevant.”); United States v. Gant, 759 F.2d 484, 487-88 (5th
Cir. 1985) (“[T]he determination of good faith will ordinarily
depend on an examination of the affidavit by the reviewing
court.”).
Furthermore, the warrant was applied for and issued prior
to this court’s decision in United States v. Weaver, 99 F.3d
1372 (6th Cir. 1998), in which a panel of this court held that
the search warrant in question was defective primarily
because the officer’s affidavit did not provide any “underlying
factual circumstances to support the informant’s knowledge
regarding distribution, nor the detective’s own ‘belief’ that
. . . quantities of marijuana were present ‘for the purpose or
with the intention of unlawful possession, sale or
transportation,’ or even that marijuana would be on the
premises when the warrant was executed.” Id. at 1378.
Because the Weaver decision—with its clear mandate that the
underlying affidavit must include specific information
concerning the quantity, storing, or selling of illegal
drugs—was handed down after the judicial officer in this case
issued the warrant, it was all the more reasonable for an
officer such as Lomenick to have formed an objective good
faith belief that the information supplied by the informant was

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16 United States v. Allen No. 96-6313
sufficient under the authority of United States v. Pelham, 801
F.2d 875 (6th Cir. 1986), and United States v. Finch, 998 F.2d
349 (6th Cir. 1993).
The dissent characterizes this fact as having “little
consequence” because “Weaver simply interpreted Leon and
applied it to the facts before it; Weaver certainly did not—and
in fact could not—change the exceptions to the good faith
provision as articulated by the Supreme Court.” These
arguments, however, do not diminish my point that an officer
should not be expected to predict that warrant practices
similar to what the courts have found acceptable in the past
will subsequently fail to withstand the analysis of evolving
legal decisions.
Although not dispositive, it is also telling that the question
of whether the warrant in this case was defective has
generated significant debate among the judges of this court.
See Leon, 468 U.S. at 926 (“The affidavit . . . provided
evidence sufficient to create disagreement among thoughtful
and competent judges as to the existence of probable cause.”);
United States v. Taxacher, 902 F.2d 867, 872 (11th Cir. 1990)
(noting that the Supreme Court’s observation in Leon—that
reasonable jurists had disagreed on the issue—was “intended
to bolster the Court’s holding that the officer had acted
reasonably under the circumstances”).
In sum, I conclude that even though the affidavit in this
case did not provide enough detail to establish probable
cause, it was sufficient to fit within the “good faith” exception
of Leon. The dissent apparently believes that Lomenick’s
actions amount to “flagrant misconduct” (United States v.
Hove, 848 F.2d 137, 141 (9th Cir. 1988)) and therefore the
“extreme sanction” (Leon, 468 U.S. at 916, 926) of exclusion
should be imposed. Because I disagree, I would affirm the
denial of Allen’s motion to suppress, albeit for reasons other
than those set forth by the majority.
No. 96-6313 United States v. Allen 21
“reliability” and “basis of knowledge” of the informant
–] independent status. Instead, they are better understood
as relevant considerations in the totality of circumstances
analysis that traditionally has guided probable cause
determinations: a deficiency in one may be compensated
for, in determining the overall reliability of a tip, by a
strong showing as to the other, or by some other indicia
of reliability.
Id. at 232-33 (citations, footnotes, and internal quotation
marks omitted).
By way of example, the Court then emphasized the
balancing approach not only of the informants’ “veracity” or
“reliability” and “basis of knowledge,” but the totality of the
circumstances in general. Gates, 462 U.S. at 233. In doing
so, the Court expressly provided a hypothetical scenario of
what the majority holds today as being decisively sufficient
regarding the informant and the information he or she has so
provided, as well as other scenarios, noting that each scenario
should be assessed under the totality of the circumstances to
determine whether the information provided established
probable cause.
If, for example, a particular informant is known for the
unusual reliability of his predictions of certain types of
criminal activities in a locality, his failure, in a
particular case, to thoroughly set forth the basis of his
knowledge surely should not serve as an absolute bar to
a finding of probable cause based on his tip. Likewise,
if an unquestionably honest citizen comes forward with
a report of criminal activity – which if fabricated would
subject him to criminal liability – we have found rigorous
scrutiny of the basis of knowledge unnecessary.
Conversely, even if we entertain some doubt as to an
informant’s motives, his explicit and detailed description
of alleged wrongdoing, along with a statement that the
event was observed first-hand, entitles his tip to greater
weight than might otherwise be the case. Unlike a
totality of circumstances analysis, which permits a

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20 United States v. Allen No. 96-6313
knowledge” – are all highly relevant. However, the Court
went on to opine that these elements should not “be
understood as entirely separate and independent requirements
to be rigidly exacted in every case [as they had been applied
by lower courts]. Rather, . . . they should be understood
simply as closely intertwined issues that may usefully
illuminate the commonsense, practical question whether there
is ‘probable cause’ to believe that contraband or evidence is
located in a certain place.” See Gates, 462 U.S. at 230.
The Court found this “totality of the circumstances
approach . . . far more consistent with prior treatment of
probable cause than . . . any rigid demand that specific ‘tests’
be satisfied by every informant’s tip.” Gates, 462 U.S. 230-
31. Moreover, the Court reasoned that the less rigid approach
was in concert with the dynamic nature of probable cause as
being a “‘practical, nontechnical conception.’” Id. at 231
(quoting Brinegar v. United States, 338 U.S. 160, 176
(1949)). The Court embraced its earlier teachings regarding
probable cause as dealing in “probabilities.” Id. These
probabilities “‘are not technical; they are the factual and
practical considerations of everyday life on which reasonable
and prudent men, not legal technicians, act.’” Id. (quoting
Brinegar, 338 U.S. at 175). The Court further opined as
follows:
[P]robable cause is a fluid concept – turning on the
assessment of probabilities in particular factual contexts
– not readily, or even usefully, reduced to a neat set of
legal rules. Informant’s tips doubtless come in many
shapes and sizes from many different types of
persons. . . . Informants’ tips, like all other clues and
evidence coming to a policeman on the scene may vary
greatly in their value and reliability. Rigid legal rules are
ill-suited to an area of such diversity. One simple rule
will not cover every situation.
* * *
There are persuasive arguments against according [the
elements of the “two-pronged test” – “veracity” or
No. 96-6313 United States v. Allen 17
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DISSENT
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CLAY, Circuit Judge, dissenting. Because I believe that
the majority’s holding relaxes the standard upon which a
warrant may issue to a point unsupported by Fourth
Amendment jurisprudence, and indeed unsupported by the
letter and spirit of the Fourth Amendment itself, I respectfully
dissent. As a result of today’s holding, any tip provided by an
informant who has provided reliable information to the police
in the past is sufficient to constitute probable cause for the
warrant to issue, irrespective of the bare, generalized nature
of the information provided and without any corroboration by
the police. This result strips away the protection that is
afforded to all citizens -- both innocent and guilty alike -- to
be free from legally unsupportable and hence unreasonable
searches and seizures, and is at variance with the meaning of
probable cause as envisioned by the drafters of the
Amendment.
Although I disagree with the majority’s decision to affirm
the district court’s order denying Defendant’s motion to
suppress the evidence, I am most troubled by the far reaching
effects of the majority’s opinion which drive a stake through
the very heart of the Fourth Amendment. It is for this reason
that while I address the matter at hand, I pay particular
attention to the devastating impact that this decision has on
Fourth Amendment jurisprudence in this circuit as a whole.
I.
The Fourth Amendment provides:
The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.

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18 United States v. Allen No. 96-6313
U.S. C ONST . amend. IV. It was argued when the Constitution
and Bill of Rights were being adopted that a provision
providing against searches and seizures unsupported by
evidence of wrongdoing was needed to prevent general
warrants from issuing:
[G]eneral warrants, by which an officer may search
suspected places, without evidence of the commission of
a fact, or seize any person without evidence of his crime,
ought to be prohibited. As these are admitted, any man
may be seized, any property may be taken, in the most
arbitrary manner, without evidence or reason. Every
thing most sacred may be searched and ransacked by the
strong hand of power.
See 3 J ONATHAN ELLIOT , THE DEBATES OF THE S EVERAL
S TATE C ONVENTIONS, ON THE ADOPTION OF THE FEDERAL
C ONSTITUTION 588 (2d ed. J.B. Lippincott Comp. 1831)
(comments of Patrick Henry). Hence, the requirement that a
warrant be supported by specific evidence of criminal activity
before being issued is deeply rooted in our history. Moreover,
the Framers of the Bill of Rights carefully sought to define the
precise conditions under which government agents could
search private property so that citizens would not be at the
mercy of those agents for the protection of their privacy. As
such, the express language of the Fourth Amendment must be
heeded, and the particularized nature of the oath or
affirmation made in support of the warrant as required by the
Amendment cannot be considered a mere technicality.
The quantum of evidence or information required to
support the issuance of a warrant – i.e., the requirements of
the particularized inquiry to establish probable cause – has
long been debated in the courts, especially when the warrant
is based upon hearsay information from an informant. The
jurisprudential evolution concerning the requirements for the
issuance of warrants reached its peak in the seminal case of
Illinois v. Gates, 462 U.S. 213 (1983). The cases from our
circuit applying the standards set forth in Gates span a wide
range of holdings which the majority claims has given rise to
No. 96-6313 United States v. Allen 19
1Cases from this circuit may indeed be looked to for guidance
nonetheless. The Allen panel considered the cases of United States v.
Pelham, 801 F.2d 875 (1986), United States v. Finch, 998 F.2d 349
(1993), and United States v. Weaver, 99 F.3d 1372 (1996) for guidance.
However, the Allen panel also found that any apparent inconsistencies
between these decisions were due to the nature of probable cause and the
fact that various factors must be weighed and balanced when determining
whether sufficient evidence was presented by the affiant in order to
provide a substantial basis for determining whether criminal activity was
afoot. See United States v. Allen, 168 F.3d 293, 299 (6th Cir.), rehearing
en banc granted, judgment vacated by United States v. Allen, 179 F.3d
1002 (6th Cir. 1999). It is this very weighing and balancing of factors
that the majority opinion now finds unnecessary, contrary to Supreme
Court precedent. As a result, the majority’s opinion does not “clarify the
law in this circuit” as it claims to do in response to the invitation extended
by the Allen panel’s dissent; instead, the majority’s opinion derogates the
law as dictated by the Supreme Court.
confusion as to the appropriate standards for determining
probable cause as well as their proper application. However,
I disagree that the various holdings have led to confusion as
to the proper standards or their application. Any arguable
inconsistencies in cases from this circuit are not the result of
confusion as to the standards or their application in probable
cause analysis, but rather a function of the fluid nature of
probable cause.1 See id. at 231. With that said, I focus upon
the Gates decision itself in this dissent because it provides the
benchmark for probable cause analysis. As will be illustrated,
the majority opinion is at odds with the Supreme Court’s
mandates regarding a reviewing court’s determination of
whether a warrant is supported by probable cause, and
therefore sets a dangerous and unfounded precedent in this
circuit.
In Gates, the Supreme Court examined its earlier decisions
in Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v.
United States, 393 U.S. 410 (1969) and rejected the strict
interpretation that had been given these decisions by
reviewing courts. Specifically, the Court acknowledged that
the elements of the “two pronged test” established in these
decisions regarding the value that should be afforded to an
informant’s tip – “veracity” or “reliability” and “basis of

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